Palgut v. City of Colorado Springs, Case No. 06-cv-01142 (D. Col. December 3, 2007)

This is an employment discrimination suit. The plaintiff sought a variety of relief in connection with e-discovery disputes. The court was not sympathetic.

Magistrate Judge Michael J. Watanabe did not provide a great deal of analysis in connection with his findings and conclusions. Nonetheless, the findings and conclusions are of interest if only for the court’s instincts, which seemed quite appropriate.

The court’s findings and conclusions can be summarized as follows:

    1. The 2006 Amendments to Fed. R. Civ. P. 34 simply clarify “that discovery of electronically stored information stands on equal footing with discovery of paper documents.” “Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant's electronic information storage systems than to defendant's warehouses storing paper documents.”
    2. Like the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data. “Rule 34(a) does not give the requesting party the right to conduct the actual search.”
    3. The trigger date for defendant’s duty to preserve evidence was February 14, 2006, when defendant received plaintiff’s counsel’s “litigation hold letter,” and the court was apparently satisfied with the defendant’s efforts at preservation, which involved a memo/letter to the “Fire Chief, et al.” A copy of this letter is attached to the Order.
    4. “Plaintiff failed to meet her burden of proof for a third party computer forensic expert to be appointed by the court to examine defendant's computer systems.”
    5. Backup tapes dating back three to four years, which were kept by defendant in the event of a major disaster, were “not currently accessible by Defendant City of Colorado since they do not have the hardware to access them.”
    6. Since defendant had agreed to do an additional search for ESI, “in weighing the possible yield of relevant information from such ‘back up tapes’ in comparison to the cost for such restoration, the cost of restoration outweighs the possible yield of relevant and probative information.”